Subsection 74(1) -- Application for exemption from prospectus requirement in connection with first trade of shares of issuer through the London Stock Exchange or to person or company outside of Canada -- issuer not a reporting issuer in any jurisdiction in Canada -- conditions of the exemption in section 2.14 of National Instrument 45-102 Resale of Securities not satisfied as indirect parent of issuer, holding up to 75% of issuers issued and outstanding shares, is a resident of Canada -- relief restricted to securities acquired under private placement in Canada to be conducted concurrent with an initial public offering of the issuer in the United Kingdom -- relief granted subject to conditions, including condition that, excluding shares held by the issuer's indirect parent, residents of Canada do not hold more than 10 percent of the issued and outstanding shares or represent more than 10 percent of the number of securityholders and condition that the first trade be made through the London Stock Exchange or to a person or company outside of Canada.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53, 74(1).
National Instrument 45-102 Resale of Securities, s. 2.14.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
AFRICAN BARRICK GOLD LIMITED
The Ontario Securities Commission (the "Commission") has received an application from the Applicant for an exemption under Section 74(1) of the Securities Act (Ontario) (the "Act") from the prospectus requirement (the "Prospectus Requirement") set forth in Section 53 of the Act in connection with the first trades of ordinary shares of the Applicant to be sold to investors (the "Ontario Investors") resident in the province of Ontario (the "Jurisdiction").
Terms defined in the Act and in National Instrument 14-101 -- Definitions have the same meaning if used in this ruling, unless otherwise defined.
This order is based on the following facts represented by the Applicant:
1. The Applicant was incorporated and registered in England and Wales on January 12, 2010, under the Companies Act 2006 as a private limited company with the name BUK Topco Limited. On February 17, 2010, the Applicant was renamed African Barrick Gold Limited. The Applicant will ultimately be re-registered as a public limited company with the name African Barrick Gold plc.
2. The registered office of the Applicant is c/o Shearman & Sterling (London) LLP, Broadgate West, 9 Appold Street, London, EC2A 2AP. The principal place of business of the Applicant is its registered office.
3. The Applicant was incorporated with share capital of £1 divided into 1 ordinary share of £1 (an "Ordinary Share"), which was issued on incorporation to Barrick Gold Corporation ("BGC").
4. While the exact number of Ordinary Shares to be issued has not yet been determined, the Applicant proposes to conduct an initial public offering (the "Offering") of Ordinary Shares.
5. The Applicant was formed to consolidate the African gold mines, projects and exploration properties of BGC and its affiliates (the "Reorganization") and to become the public vehicle for the Offering.
6. The Applicant is not a reporting issuer or its equivalent in any province or territory of Canada and its Ordinary Shares are not listed or posted for trading on any stock exchange in Canada or elsewhere. The Applicant has no present intention of listing its Ordinary Shares on any Canadian stock exchange or of becoming a reporting issuer under any Canadian securities legislation.
7. BGC is a corporation existing under the Business Corporations Act (Ontario). The principal office of BGC is located in Toronto, Ontario. BGC is the leading gold mining company in the world in terms of production, reserves and market capitalization and has operating mines or projects in Canada, the United States, Dominican Republic, Australia, Papua New Guinea, Peru, Chile, Argentina, Pakistan, Russia, South Africa and Tanzania. As at February 12, 2010, BGC had a market capitalization in excess of Cdn.$38 billion.
8. BGC is a reporting issuer or the equivalent under the securities legislation of each province and territory of Canada. The Applicant is advised that, to the knowledge of BGC, BGC is not in default of Canadian securities legislation.
9. In connection with the Reorganization, BGC and one or more of its affiliates will obtain Ordinary Shares as consideration for the transfer of their African holdings to the Applicant. Prior to the Offering and in connection with the Reorganization, BGC will transfer the Ordinary Shares of the Applicant it has acquired to one or more of its affiliates. Any affiliate of BGC (collectively, the "Foreign Affiliates") that will own Ordinary Shares of the Applicant will not be incorporated or exist under any federal or provincial statute of Canada.
10. Immediately following the Offering, the Ordinary Shares will be publicly traded on the London Stock Exchange (the "LSE"). The Applicant also intends to seek a future listing of its Ordinary Shares on the Dar es Salaam Stock Exchange in Tanzania.
11. As part of the Offering, the Applicant intends to offer Ordinary Shares (the "Canadian Offering Shares") to Ontario Investors in reliance upon the accredited investor exemption from the prospectus and registration requirements found in National Instrument 45-106 -- Prospectus and Registration Exemptions ("NI 45-106"). The Applicant also intends to offer Ordinary Shares to investors in the United States and other international jurisdictions on a private placement basis in accordance with applicable laws.
12. On the date that the Canadian Offering Shares are distributed to the Ontario Investors (the "Distribution Date"), after giving effect to the Offering, the Canadian Offering Shares will not constitute more than 10% of the Public Float (defined as the issued and outstanding Ordinary Shares of the Applicant on the Distribution Date after giving effect to the Offering and deducting the Ordinary Shares owned directly or indirectly by BGC and the Foreign Affiliates).
13. Following completion of the Offering, BGC will indirectly, through the Foreign Affiliates, own not more than 75% of the outstanding Ordinary Shares, and potentially less than 75% depending on the ultimate size of the Offering and whether the over-allotment option is exercised. For greater certainty, the Ordinary Shares held indirectly by BGC are not Canadian Offering Shares.
14. Pursuant to an agreement to be entered into with the underwriters involved in the Offering, the Ordinary Shares held by the Foreign Affiliates following the Offering will be subject to a lock-up of at least 180 days (the "Lock-Up").
15. In addition to the Lock-Up, under UK law, except in limited circumstances, the Foreign Affiliates may only dispose of their Ordinary Shares with a prospectus. These limited circumstances include sales to "qualified investors" including institutional buyers, private placements involving fewer than 100 persons (other than "qualified investors") per EEA State, sales where the consideration payable per investor is at least €50,000 and sales pursuant to offers with a total consideration of less than €100,000 over any 12 month period. As a result of these contractual and legal restrictions, the block of Ordinary Shares held by the Foreign Affiliates is illiquid and not readily tradeable.
16. For so long as a Foreign Affiliate is a "control person" as such term is defined in the Act, any directed trade of Ordinary Shares to a purchaser in Canada by such Foreign Affiliate (other than trades over the LSE or any other foreign exchange) will be a "distribution" as defined in the Act.
17. Upon completion of the Offering, the Canadian Offering Shares will constitute approximately 2.5% of the issued and outstanding Ordinary Shares, though this number could be higher depending on the ultimate size of the Offering. When aggregated with the Ordinary Shares indirectly owned by BGC through the Foreign Affiliates, the total number of Ordinary Shares held directly or indirectly by resident Canadians will exceed 10% of the issued and outstanding Ordinary Shares.
18. On the Distribution Date, after giving effect to the Offering, residents of Canada will not represent in number more than 10% of the total number of owners, directly or indirectly, of Ordinary Shares of the Applicant.
19. In the absence of an order granting relief, the first trade in Canadian Offering Shares by any of the Ontario Investors will be deemed to be a distribution pursuant to National Instrument 45-102 -- Resale of Securities ("NI 45-102").
20. The exemption provided in Section 2.14 of NI 45-102 will not be available to the Ontario Investors with respect to a first trade of the Canadian Offering Shares on the LSE because at the distribution date of the Canadian Offering Shares, BGC, a resident of Canada, will indirectly own more than 10% of the issued and outstanding Ordinary Shares.
21. No market for the Ordinary Shares is expected to develop in Canada as a result of or following the Offering. The Ordinary Shares will be offered primarily outside of Canada with no more than 10% of the Public Float being held by the Ontario Investors after giving effect to the Offering. The market for the Ordinary Shares will be outside of Canada and primarily in the UK as a result of the LSE listing. Any public resale of Ordinary Shares by the Ontario Investors or the Foreign Affiliates is expected to be effected through the facilities of the LSE or, in the case of the Foreign Affiliates, on any other exchanges or markets outside of Canada on which the Ordinary Shares may be quoted or listed at the time that the trade occurs.
22. The Applicant will be subject to reporting and disclosure obligations under applicable UK law and the rules of the LSE. Holders of Canadian Offering Shares will receive copies of all shareholder materials provided to all other holders of Ordinary Shares, in accordance with applicable law, and will also have general access to such materials on the Applicant's website.
23. Investors acquiring the Ordinary Shares pursuant to the Offering in jurisdictions outside of Canada, including investors acquiring Ordinary Shares on a private placement basis in the United States and other international jurisdictions, will be permitted to dispose of those Ordinary Shares through the LSE.
24. Failure to obtain the relief requested herein will adversely impact the marketing of the Ordinary Shares to Ontario Investors and may result in the withdrawal of the Canadian private placement. It is expected that very few Ontario Investors will participate in the Offering absent an ability to freely resell the Ordinary Shares on the LSE. If the Offering is made available in the Jurisdiction and the relief is not granted, the Ontario Investors who choose to participate in the Offering will be at a disadvantage relative to investors in other jurisdictions.
The Commission is satisfied that this order meets the test set out in Section 74(1) of the Act.
The order of the Commission under Section 74(1) of the Act is that the first trades of the Canadian Offering Shares by Ontario Investors are exempt from the Prospectus Requirement provided that:
(a) on the Distribution Date, after giving effect to the Offering, the Canadian Offering Shares will not constitute more than 10% of the Public Float;
(b) on the Distribution Date, after giving effect to the Offering, residents of Canada will not represent in number more than 10% of the total number of owners, directly or indirectly, of Ordinary Shares of the Applicant;
(c) the Applicant
(i) is not a reporting issuer in any jurisdiction of Canada at the Distribution Date, or
(ii) is not a reporting issuer in any jurisdiction of Canada at the date of such first trades, and
(d) such first trades are executed through the facilities of the LSE or to a person or company outside of Canada.
DATED at Toronto on this 9th day of March, 2010.
"Carol S. Perry"